SUBPART AUTHORIZATION ACTS, APPROPRIATIONS ACTS, AND OTHER STATUTORY RESTRICTIONS ON FOREIGN ACQUISITION (Revised December 24, 2009)

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1 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement SUBPART AUTHORIZATION ACTS, APPROPRIATIONS ACTS, AND OTHER STATUTORY RESTRICTIONS ON FOREIGN ACQUISITION (Revised December 24, 2009) Scope of subpart. (a) This subpart contains restrictions on the acquisition of foreign products and services, imposed by DoD appropriations and authorization acts and other statutes. Refer to the acts to verify current applicability of the restrictions. (b) Nothing in this subpart affects the applicability of the Buy American Act or the Balance of Payments Program Definitions. As used in this subpart (a) Bearing components is defined in the clause at , Restriction on Acquisition of Ball and Roller Bearings. (b) Component is defined in the clauses at , Restriction on Acquisition of Certain Articles Containing Specialty Metals; , Preference for Certain Domestic Commodities; and , Restriction on Acquisition of Ball and Roller Bearings except that for use in , the term has the meaning given in the clause at , Restriction on Acquisition of Anchor and Mooring Chain. (c) End product is defined in the clause at , Preference for Certain Domestic Commodities. (d) Hand or measuring tools means those tools listed in Federal supply classifications 51 and 52, respectively Restrictions on food, clothing, fabrics, and hand or measuring tools Restrictions. The following restrictions implement 10 U.S.C. 2533a (the Berry Amendment ). Except as provided in subsection , do not acquire-- (a) Any of the following items, either as end products or components, unless the items have been grown, reprocessed, reused, or produced in the United States: (1) Food. (2) Clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing and the materials and components thereof. Clothing includes items such as outerwear, headwear, underwear, nightwear, footwear, hosiery, handwear, belts, badges, and insignia. For additional guidance and examples, see PGI (a)(2). (3) Tents, tarpaulins, or covers EDITION

2 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (4) Cotton and other natural fiber products. (5) Woven silk or woven silk blends. (6) Spun silk yarn for cartridge cloth. (7) Synthetic fabric or coated synthetic fabric, including all textile fibers and yarns that are for use in such fabrics. (8) Canvas products. (9) Wool (whether in the form of fiber or yarn or contained in fabrics, materials, or manufactured articles). (10) Any item of individual equipment (Federal Supply Class 8465) manufactured from or containing any of the fibers, yarns, fabrics, or materials listed in this paragraph (a). (b) Hand or measuring tools, unless the tools were produced in the United States Exceptions. Acquisitions in the following categories are not subject to the restrictions in : (a) Acquisitions at or below the simplified acquisition threshold. (b) Acquisitions of any of the items in (a), if the Secretary concerned determines that items grown, reprocessed, reused, or produced in the United States cannot be acquired as and when needed in a satisfactory quality and sufficient quantity at U.S. market prices. (See the requirement in for synopsis within 7 days after contract award when using this exception.) (1) The following officials are authorized, without power of redelegation, to make such a domestic nonavailability determination: (i) The Under Secretary of Defense (Acquisition, Technology, and Logistics). (ii) The Secretary of the Army. (iii) The Secretary of the Navy. (iv) The Secretary of the Air Force. (v) The Director of the Defense Logistics Agency. (2) The supporting documentation for the determination shall include (i) An analysis of alternatives that would not require a domestic nonavailability determination; and (ii) A written certification by the requiring activity, with specificity, why such alternatives are unacceptable EDITION

3 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (3) Defense agencies other than the Defense Logistics Agency shall follow the procedures at PGI (b)(3) when submitting a request for a domestic nonavailability determination. (4) Follow the procedures at PGI (b)(4) for reciprocal use of domestic nonavailability determinations. (c) Acquisitions of items listed in FAR (a), unless the items are hand or measuring tools. (d) Acquisitions outside the United States in support of combat operations. (e) Acquisitions of perishable foods by or for activities located outside the United States for personnel of those activities. (f) Acquisitions of food or hand or measuring tools (1) In support of contingency operations; or (2) For which the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency in accordance with FAR (g) Emergency acquisitions by activities located outside the United States for personnel of those activities. (h) Acquisitions by vessels in foreign waters. (i) Acquisitions of items specifically for commissary resale. (j) Acquisitions of incidental amounts of cotton, other natural fibers, or wool incorporated in an end product, for which the estimated value of the cotton, other natural fibers, or wool-- (1) Is not more than 10 percent of the total price of the end product; and (2) Does not exceed the simplified acquisition threshold. (k) Acquisitions of waste and byproducts of cotton or wool fiber for use in the production of propellants and explosives. (l) Acquisitions of foods manufactured or processed in the United States, regardless of where the foods (and any component if applicable) were grown or produced. However, in accordance with Section 8118 of the DoD Appropriations Act for Fiscal Year 2005 (Pub. L ), this exception does not apply to fish, shellfish, or seafood manufactured or processed in the United States or fish, shellfish, or seafood contained in foods manufactured or processed in the United States. (m) Acquisitions of fibers and yarns that are for use in synthetic fabric or coated synthetic fabric (but not the purchase of the synthetic or coated synthetic fabric itself), if 1998 EDITION

4 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (1) The fabric is to be used as a component of an end product that is not a textile product. Examples of textile products, made in whole or in part of fabric, include (i) Draperies, floor coverings, furnishings, and bedding (Federal Supply Group 72, Household and Commercial Furnishings and Appliances); (ii) Items made in whole or in part of fabric in Federal Supply Group 83, Textile/leather/furs/apparel/findings/tents/flags, or Federal Supply Group 84, Clothing, Individual Equipment and Insignia; (iii) Upholstered seats (whether for household, office, or other use); and (iv) Parachutes (Federal Supply Class 1670); or (2) The fibers and yarns are para-aramid fibers and yarns manufactured in a qualifying country. (n) Acquisitions of chemical warfare protective clothing when the acquisition furthers an agreement with a qualifying country. (See and the requirement in for synopsis within 7 days after contract award when using this exception.) Contract clauses. Unless an exception applies (a) Use the clause at , Preference for Certain Domestic Commodities, in solicitations and contracts exceeding the simplified acquisition threshold. (b) Use the clause at , Restriction on Acquisition of Hand or Measuring Tools, in solicitations and contracts exceeding the simplified acquisition threshold that require delivery of hand or measuring tools Restrictions on acquisition of specialty metals Definitions. As used in this section (a) Assembly, commercial derivative military article, commercially available off-the-shelf item, component, electronic component, end item, high performance magnet, required form, and subsystem are defined in the clause at , Restriction on Acquisition of Certain Articles Containing Specialty Metals. (b) Automotive item (1) Means a self-propelled military transport tactical vehicle, primarily intended for use by military personnel or for carrying cargo, such as (i) A high-mobility multipurpose wheeled vehicle; (ii) An armored personnel carrier; or (iii) A troop/cargo-carrying truckcar, truck, or van; and 1998 EDITION

5 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (2) Does not include (i) A commercially available off-the-shelf vehicle; or (ii) Construction equipment (such as bulldozers, excavators, lifts, or loaders) or other self-propelled equipment (such as cranes or aircraft ground support equipment). (c) Produce and specialty metal are defined in the clauses at , Restriction on Acquisition of Specialty Metals, and , Restriction on Acquisition of Certain Articles Containing Specialty Metals Restrictions. The following restrictions implement 10 U.S.C. 2533b. Except as provided in (a) Do not acquire the following items, or any components of the following items, unless any specialty metals contained in the items or components are melted or produced in the United States (also see guidance at PGI (a)): (1) Aircraft. (2) Missile or space systems. (3) Ships. (4) Tank or automotive items. (5) Weapon systems. (6) Ammunition. (b) Do not acquire a specialty metal (e.g., raw stock, including bar, billet, slab, wire, plate, and sheet; castings; and forgings) as an end item, unless the specialty metal is melted or produced in the United States. This restriction applies to specialty metal acquired by a contractor for delivery to DoD as an end item, in addition to specialty metal acquired by DoD directly from the entity that melted or produced the specialty metal Exceptions. Procedures for submitting requests to the Under Secretary of Defense (Acquisition, Technology, and Logistics) (USD(AT&L)) for a determination or approval as required in paragraph (b)(5), (c), or (d) of this subsection are at PGI (a) Acquisitions in the following categories are not subject to the restrictions in : (1) Acquisitions at or below the simplified acquisition threshold. (2) Acquisitions outside the United States in support of combat operations EDITION

6 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (3) Acquisitions in support of contingency operations. (4) Acquisitions for which the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency in accordance with FAR (5) Acquisitions of items specifically for commissary resale. (6) Acquisitions of items for test and evaluation under the foreign comparative testing program (10 U.S.C. 2350a(g)). However, this exception does not apply to any acquisitions under follow-on production contracts. (b) One or more of the following exceptions may apply to an end item or component that includes any of the following, under a prime contract or subcontract at any tier. The restrictions in do not apply to the following: (1) Electronic components, unless the Secretary of Defense, upon the recommendation of the Strategic Materials Protection Board pursuant to 10 U.S.C. 187, determines that the domestic availability of a particular electronic component is critical to national security. (2)(i) Commercially available off-the-shelf (COTS) items containing specialty metals, except the restrictions do apply to contracts or subcontracts for the acquisition of (A) Specialty metal mill products, such as bar, billet, slab, wire, plate, and sheet, that have not been incorporated into end items, subsystems, assemblies, or components. Specialty metal supply contracts issued by COTS producers are not subcontracts for the purposes of this exception; (B) Forgings or castings of specialty metals, unless the forgings or castings are incorporated into COTS end items, subsystems, or assemblies; (C) Commercially available high performance magnets that contain specialty metal, unless such high performance magnets are incorporated into COTS end items or subsystems (see PGI (b)(6) for a table of applicability of specialty metals restrictions to magnets); and (D) COTS fasteners, unless (1) The fasteners are incorporated into COTS end items, subsystems, or assemblies; or (2) The fasteners qualify for the commercial item exception in paragraph (b)(3) of this subsection. (ii) If this exception is used for an acquisition of COTS end items valued at $5 million or more per item, the acquiring department or agency shall submit an annual report to the Director, Defense Procurement and Acquisition Policy, in accordance with the procedures at PGI (b)(2) EDITION

7 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (iii) During fiscal year 2009, contractors are required to report use of this exception to acquire COTS items containing specialty metal that are incorporated into a noncommercial end item (see ). (3) Fasteners that are commercial items and are acquired under a contract or subcontract with a manufacturer of such fasteners, if the manufacturer has certified that it will purchase, during the relevant calendar year, an amount of domestically melted or produced specialty metal, in the required form, for use in the production of fasteners for sale to DoD and other customers, that is not less than 50 percent of the total amount of the specialty metal that the manufacturer will purchase to carry out the production of such fasteners for all customers. (4) Items listed in (a), manufactured in a qualifying country or containing specialty metals melted or produced in a qualifying country. (5) Specialty metal in any of the items listed in if the USD(AT&L), or an official authorized in accordance with paragraph (b)(5)(i) of this subsection, determines that specialty metal melted or produced in the United States cannot be acquired as and when needed at a fair and reasonable price in a satisfactory quality, a sufficient quantity, and the required form (i.e., a domestic nonavailability determination). See guidance in PGI (b)(5). (i) The Secretary of the military department concerned is authorized, without power of redelegation, to make a domestic nonavailability determination that applies to only one contract. The supporting documentation for the determination shall include (A) An analysis of alternatives that would not require a domestic nonavailability determination; and (B) Written documentation by the requiring activity, with specificity, why such alternatives are unacceptable. (ii) A domestic nonavailability determination that applies to more than one contract (i.e., a class domestic nonavailability determination), requires the approval of the USD(AT&L). (A) At least 30 days before making a domestic nonavailability determination that would apply to more than one contract, the USD(AT&L) will, to the maximum extent practicable, and in a manner consistent with the protection of national security and confidential business information (1) Publish a notice on the Federal Business Opportunities website ( or any successor site) of the intent to make the domestic nonavailability determination; and (2) Solicit information relevant to such notice from interested parties, including producers of specialty metal mill products. (B) The USD(AT&L) 1998 EDITION

8 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (1) Will take into consideration all information submitted in response to the notice in making a class domestic nonavailability determination; (2) May consider other relevant information that cannot be made part of the public record consistent with the protection of national security information and confidential business information; and (3) Will ensure that any such domestic nonavailability determination and the rationale for the determination are made publicly available to the maximum extent consistent with the protection of national security and confidential business information. (6) End items containing a minimal amount of otherwise noncompliant specialty metals (i.e., specialty metals not melted or produced in the United States that are not covered by another exception listed in this paragraph (b)), if the total weight of noncompliant specialty metal does not exceed 2 percent of the total weight of all specialty metal in the end item. This exception does not apply to high performance magnets containing specialty metals. See PGI (b)(6) for a table of applicability of specialty metals restrictions to magnets. (c) Compliance for commercial derivative military articles. The restrictions at (a) do not apply to an item acquired under a prime contract if (1) The offeror has certified, and subsequently demonstrates, that the offeror and its subcontractor(s) will individually or collectively enter into a contractual agreement or agreements to purchase a sufficient quantity of domestically melted or produced specialty metal in accordance with the provision at ; and (2) The USD(AT&L), or the Secretary of the military department concerned, determines that the item is a commercial derivative military article (defense agencies see procedures at PGI ). The contracting officer shall submit the offeror s certification and a request for a determination to the appropriate official, through agency channels, and shall notify the offeror when a decision has been made. (d) National security waiver. The USD(AT&L) may waive the restrictions at if the USD(AT&L) determines in writing that acceptance of the item is necessary to the national security interests of the United States (see procedures at PGI ). This authority may not be delegated. (1) The written determination of the USD(AT&L) (i) Shall specify the quantity of end items to which the national security waiver applies; (ii) Shall specify the time period over which the national security waiver applies; and (iii) Shall be provided to the congressional defense committees before the determination is executed, except that in the case of an urgent national security requirement, the determination may be provided to the congressional defense committees up to 7 days after it is executed EDITION

9 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (2) After making such a determination, the USD(AT&L) will (i) Ensure that the contractor or subcontractor responsible for the noncompliant specialty metal develops and implements an effective plan to ensure future compliance; and (ii) Determine whether or not the noncompliance was knowing and willful. If the USD(AT&L) determines that the noncompliance was knowing and willful, the appropriate debarring and suspending official shall consider suspending or debarring the contractor or subcontractor until such time as the contractor or subcontractor has effectively addressed the issues that led to the noncompliance. (3) Because national security waivers will only be granted when the acquisition in question is necessary to the national security interests of the United States, the requirement for a plan will be applied as a condition subsequent, and not a condition precedent, to the granting of a waiver One-time waiver. DoD may accept articles containing specialty metals that are not in compliance with the specialty metals clause of the contract if (a) Final acceptance takes place before September 30, 2010; (b) The specialty metals were incorporated into items (whether end items or components) produced, manufactured, or assembled in the United States before October 17, 2006; (c) The contracting officer determines in writing that (1) It would not be practical or economical to remove or replace the specialty metals incorporated in such items or to substitute items containing compliant materials; (2) The contractor and any subcontractor responsible for providing items containing non-compliant specialty metals have in place an effective plan to ensure compliance with the specialty metals clause of the contract for future items produced, manufactured, or assembled in the United States; and (3) The non-compliance was not knowing or willful; (d) The determination is approved by (1) The USD(AT&L); or (2) The service acquisition executive of the military department concerned; and (e) Not later than 15 days after approval of the determination, the contracting officer posts a notice on the Federal Business Opportunities website at stating that a waiver for the contract has been granted under Section 842(b) of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L ) EDITION

10 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement Solicitation provision and contract clauses. (a) Unless the acquisition is wholly exempt from the specialty metals restrictions at because the acquisition is covered by an exception in (a) or (d) (but see paragraph (d) of this subsection) (1) Use the clause at , Restriction on Acquisition of Specialty Metals, in solicitations and contracts that (i) Exceed the simplified acquisition threshold; and (ii) Require the delivery of specialty metals as end items. (2) Use the clause at , Restriction on Acquisition of Certain Articles Containing Specialty Metals, in solicitations and contracts that (i) Exceed the simplified acquisition threshold; and (ii) Require delivery of any of the following items, or components of the following items, if such items or components contain specialty metal: (A) Aircraft. (B) Missile or space systems. (C) Ships. (D) Tank or automotive items. (E) Weapon systems. (F) Ammunition. (b) Use the provision at , Commercial Derivative Military Article Specialty Metals Compliance Certificate, in solicitations (1) That contain the clause at ; and (2) For which the contracting officer anticipates that one or more offers of commercial derivative military articles may be received. (c) Use the clause at , Reporting of Commercially Available Off-the- Shelf Items that Contain Specialty Metals and are Incorporated into Noncommercial End Items, in solicitations and contracts that (1) Contain the clause at ; (2) Are for the acquisition of noncommercial end items; and (3) Are awarded in fiscal year EDITION

11 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (d) If an agency cannot reasonably determine at time of acquisition whether some or all of the items will be used in support of combat operations or in support of contingency operations, the contracting officer should not rely on the exception at (a)(2) or (3), but should include the appropriate specialty metals clause or provision in the solicitation and contract. (e) If the solicitation and contract require delivery of a variety of contract line items containing specialty metals, but only some of the items are subject to domestic specialty metals restrictions, identify in the Schedule those items that are subject to the restrictions Restriction on acquisition of foreign buses Restriction. In accordance with 10 U.S.C. 2534, do not acquire a multipassenger motor vehicle (bus) unless it is manufactured in the United States or Canada Applicability. Apply this restriction if the buses are purchased, leased, rented, or made available under contracts for transportation services Exceptions. This restriction does not apply in any of the following circumstances: (a) Buses manufactured outside the United States and Canada are needed for temporary use because buses manufactured in the United States or Canada are not available to satisfy requirements that cannot be postponed. Such use may not, however, exceed the lead time required for acquisition and delivery of buses manufactured in the United States or Canada. (b) The requirement for buses is temporary in nature. For example, to meet a special, nonrecurring requirement or a sporadic and infrequent recurring requirement, buses manufactured outside the United States and Canada may be used for temporary periods of time. Such use may not, however, exceed the period of time needed to meet the special requirement. (c) Buses manufactured outside the United States and Canada are available at no cost to the U.S. Government. (d) The acquisition is for an amount at or below the simplified acquisition threshold Waiver. The waiver criteria at (a) apply to this restriction Restriction on certain chemical weapons antidote Restriction. In accordance with 10 U.S.C. 2534, do not acquire chemical weapons antidote contained in automatic injectors, or the components for such injectors, unless the chemical weapons antidote or component is manufactured in the United States or Canada by a company that 1998 EDITION

12 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (a) Has received all required regulatory approvals; and (b) Has the plant, equipment, and personnel to perform the contract in the United States or Canada at the time of contract award Exception. This restriction does not apply if the acquisition is for an amount at or below the simplified acquisition threshold Waiver. The waiver criteria at (a) apply to this restriction Restriction on air circuit breakers for naval vessels Restriction. In accordance with 10 U.S.C. 2534, do not acquire air circuit breakers for naval vessels unless they are manufactured in the United States or Canada Exceptions. This restriction does not apply if the acquisition is (a) For an amount at or below the simplified acquisition threshold; or (b) For spare or repair parts needed to support air circuit breakers manufactured outside the United States. Support includes the purchase of spare air circuit breakers when those from alternate sources are not interchangeable Waiver. (a) The waiver criteria at (a) apply to this restriction. (b) The Under Secretary of Defense (Acquisition, Technology, and Logistics) has waived the restriction for air circuit breakers manufactured in the United Kingdom. See (b) for applicability Solicitation provision and contract clause. (a) Use the provision at , Evaluation of Offers for Air Circuit Breakers, in solicitations requiring air circuit breakers for naval vessels unless-- (1) An exception applies; or (2) A waiver has been granted, other than the waiver for the United Kingdom, which has been incorporated into the provision. (b) Use the clause at , Restriction on Acquisition of Air Circuit Breakers, in solicitations and contracts requiring air circuit breakers for naval vessels unless-- (1) An exception applies; or 1998 EDITION

13 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (2) A waiver has been granted, other than the waiver for the United Kingdom, which has been incorporated into the clause Restrictions on anchor and mooring chain Restrictions. (a) In accordance with Section 8041 of the Fiscal Year 1991 DoD Appropriations Act (Pub. L ) and similar sections in subsequent DoD appropriations acts, do not acquire welded shipboard anchor and mooring chain, four inches or less in diameter, unless-- (1) It is manufactured in the United States, including cutting, heat treating, quality control, testing, and welding (both forging and shot blasting process); and (2) The cost of the components manufactured in the United States exceeds 50 percent of the total cost of components. (b) 10 U.S.C also restricts acquisition of welded shipboard anchor and mooring chain, four inches or less in diameter, when used as a component of a naval vessel. However, the Appropriations Act restriction described in paragraph (a) of this subsection takes precedence over the restriction of 10 U.S.C Waiver. (a) The Secretary of the department responsible for acquisition may waive the restriction in (a), on a case-by-case basis, if-- (1) Sufficient domestic suppliers are not available to meet DoD requirements on a timely basis; and (2) The acquisition is necessary to acquire capability for national security purposes. (b) Document the waiver in a written determination and findings containing-- (1) The factors supporting the waiver; and (2) A certification that the acquisition must be made in order to acquire capability for national security purposes. (c) Provide a copy of the determination and findings to the House and Senate Committees on Appropriations Contract clause. Unless a waiver has been granted, use the clause at , Restriction on Acquisition of Anchor and Mooring Chain, in solicitations and contracts requiring welded shipboard anchor or mooring chain four inches or less in diameter Waiver of restrictions of 10 U.S.C (a) When specifically authorized by reference elsewhere in this subpart, the 1998 EDITION

14 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement restrictions on certain foreign purchases under 10 U.S.C. 2534(a) may be waived as follows: (1)(i) The Under Secretary of Defense (Acquisition, Technology, and Logistics) (USD(AT&L)), without power of delegation, may waive a restriction for a particular item for a particular foreign country upon determination that (A) United States producers of the item would not be jeopardized by competition from a foreign country, and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country; or (B) Application of the restriction would impede cooperative programs entered into between DoD and a foreign country, or would impede the reciprocal procurement of defense items under a memorandum of understanding providing for reciprocal procurement of defense items under , and that country does not discriminate against defense items produced in the United States to a greater degree than the United States discriminates against defense items produced in that country. (ii) A notice of the determination to exercise the waiver authority shall be published in the Federal Register and submitted to the congressional defense committees at least 15 days before the effective date of the waiver. (iii) The effective period of the waiver shall not exceed 1 year. (iv) For contracts entered into prior to the effective date of a waiver, provided adequate consideration is received to modify the contract, the waiver shall be applied as directed or authorized in the waiver to waiver; and (A) Subcontracts entered into on or after the effective date of the (B) Options for the procurement of items that are exercised after the effective date of the waiver, if the option prices are adjusted for any reason other than the application of the waiver. (2) The head of the contracting activity may waive a restriction on a case-bycase basis upon execution of a determination and findings that any of the following applies: (i) The restriction would cause unreasonable delays. (ii) Satisfactory quality items manufactured in the United States or Canada are not available. (iii) Application of the restriction would result in the existence of only one source for the item in the United States or Canada. (iv) Application of the restriction is not in the national security interests of the United States. (v) Application of the restriction would adversely affect a U.S. company EDITION

15 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement (3) A restriction is waived when it would cause unreasonable costs. The cost of an item of U.S. or Canadian origin is unreasonable if it exceeds 150 percent of the offered price, inclusive of duty, of items that are not of U.S. or Canadian origin. (b) In accordance with the provisions of paragraphs (a)(1)(i) through (iii) of this section, the USD(AT&L) has waived the restrictions of 10 U.S.C. 2534(a) for certain items manufactured in the United Kingdom, including air circuit breakers for naval vessels (see ). This waiver applies to (1) Procurements under solicitations issued on or after August 4, 1998; and (2) Subcontracts and options under contracts entered into prior to August 4, 1998, under the conditions described in paragraph (a)(1)(iv) of this section Restriction on ball and roller bearings Scope. This section implements Section 8065 of the Fiscal Year 2002 DoD Appropriations Act (Pub. L ) and the same restriction in subsequent DoD appropriations acts Restriction. Do not acquire ball and roller bearings or bearing components unless the bearings and bearing components are manufactured in the United States or Canada Exception. The restriction in does not apply to contracts or subcontracts for the acquisition of commercial items, except for commercial ball and roller bearings acquired as end items Waiver. The Secretary of the department responsible for acquisition or, for the Defense Logistics Agency, the Component Acquisition Executive, may waive the restriction in , on a case-by-case basis, by certifying to the House and Senate Committees on Appropriations that-- (a) Adequate domestic supplies are not available to meet DoD requirements on a timely basis; and (b) The acquisition must be made in order to acquire capability for national security purposes Contract clause. Use the clause at , Restriction on Acquisition of Ball and Roller Bearings, in solicitations and contracts, unless (a) The items being acquired are commercial items other than ball or roller bearings acquired as end items; (b) The items being acquired do not contain ball and roller bearings; or (c) A waiver has been granted in accordance with EDITION

16 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement Reserved Restriction on carbon, alloy, and armor steel plate Restriction. (a) In accordance with Section 8111 of the Fiscal Year 1992 DoD Appropriations Act (Pub. L ) and similar sections in subsequent DoD appropriations acts, do not acquire any of the following types of carbon, alloy, or armor steel plate for use in a Government-owned facility or a facility under the control of (e.g., leased by) DoD, unless it is melted and rolled in the United States or Canada: (1) Carbon, alloy, or armor steel plate in Federal Supply Class (2) Carbon, alloy, or armor steel plate described by specifications of the American Society for Testing Materials or the American Iron and Steel Institute. (b) This restriction (1) Applies to the acquisition of carbon, alloy, or armor steel plate as a finished steel mill product that may be used as is or may be used as an intermediate material for the fabrication of an end product; and (2) Does not apply to the acquisition of an end product (e.g., a machine tool), to be used in the facility, that contains carbon, alloy, or armor steel plate as a component Waiver. The Secretary of the department responsible for acquisition may waive this restriction, on a case-by-case basis, by certifying to the House and Senate Committees on Appropriations that (a) Adequate U.S. or Canadian supplies are not available to meet DoD requirements on a timely basis; and (b) The acquisition must be made in order to acquire capability for national security purposes Contract clause. Unless a waiver has been granted, use the clause at , Restriction on Acquisition of Carbon, Alloy, and Armor Steel Plate, in solicitations and contracts that (a) Require the delivery to the Government of carbon, alloy, or armor steel plate that will be used in a Government-owned facility or a facility under the control of DoD; or (b) Require contractors operating in a Government-owned facility or a facility under the control of DoD to purchase carbon, alloy, or armor steel plate Restriction on supercomputers EDITION

17 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement Restriction. In accordance with Section 8112 of Pub. L , and similar sections in subsequent DoD appropriations acts, do not purchase a supercomputer unless it is manufactured in the United States Waiver. The Secretary of Defense may waive this restriction, on a case-by-case basis, after certifying to the Armed Services and Appropriations Committees of Congress that (a) Adequate U.S. supplies are not available to meet requirements on a timely basis; and (b) The acquisition must be made in order to acquire capability for national security purposes Contract clause. Unless a waiver has been granted, use the clause at , Restriction on Acquisition of Supercomputers, in solicitations and contracts for the acquisition of supercomputers Restrictions on construction or repair of vessels in foreign shipyards. In accordance with 10 U.S.C and 7310 (a) Do not award a contract to construct in a foreign shipyard-- (1) A vessel for any of the armed forces; or (2) A major component of the hull or superstructure of a vessel for any of the armed forces; and (b) Do not overhaul, repair, or maintain in a foreign shipyard, a naval vessel (or any other vessel under the jurisdiction of the Secretary of the Navy) homeported in the United States. This restriction does not apply to voyage repairs Restrictions on military construction. (a) For restriction on award of military construction contracts to be performed in the United States outlying areas in the Pacific and on Kwajalein Atoll, or in countries bordering the Arabian Gulf, see (a). (b) For restriction on acquisition of steel for use in military construction projects, see Restriction on overseas architect-engineer services. For restriction on award of architect-engineer contracts to be performed in Japan, in any North Atlantic Treaty Organization member country, or in countries bordering the Arabian Gulf, see Restriction on Ballistic Missile Defense research, development, test, and evaluation EDITION

18 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement Definitions. Competent, foreign firm, and U.S. firm are defined in the provision at , Notice of Prohibition of Certain Contracts with Foreign Entities for the Conduct of Ballistic Missile Defense Research, Development, Test, and Evaluation Restriction. In accordance with Section 222 of the DoD Authorization Act for Fiscal Years 1988 and 1989 (Pub. L ), do not use any funds appropriated to or for the use of DoD to enter into or carry out a contract with a foreign government or firm, including any contract awarded as a result of a broad agency announcement, if the contract provides for the conduct of research, development, test, and evaluation (RDT&E) in connection with the Ballistic Missile Defense Program Exceptions. This restriction does not apply (a) To contracts awarded to a foreign government or firm if the contracting officer determines that-- (1) The contract will be performed within the United States; (2) The contract is exclusively for RDT&E in connection with antitactical ballistic missile systems; or (3) The foreign government or firm agrees to share a substantial portion of the total contract cost. Consider the foreign share as substantial if it is equitable with respect to the relative benefits that the United States and the foreign parties will derive from the contract. For example, if the contract is more beneficial to the foreign party, its share of the cost should be correspondingly higher; or (b) If the head of the contracting activity certifies in writing, before contract award, that a U.S. firm cannot competently perform a contract for RDT&E at a price equal to or less than the price at which a foreign government or firm would perform the RDT&E. The contracting officer or source selection authority, as applicable, shall make a determination, in accordance with PGI (b), that will be the basis for the certification Solicitation provision. Unless foreign participation is otherwise excluded, use the provision at , Notice of Prohibition of Certain Contracts With Foreign Entities for the Conduct of Ballistic Missile Defense Research, Development, Test, and Evaluation, in competitively negotiated solicitations for RDT&E in connection with the Ballistic Missile Defense Program EDITION

19 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement SUBPART OTHER RESTRICTIONS ON FOREIGN ACQUISITION (Revised December 24, 2009) Scope of subpart. This subpart contains foreign product restrictions that are based on policies designed to protect the defense industrial base Definitions. Component and domestic manufacture, as used in this subpart, are defined in the clause at , Restriction on Acquisition of Forgings Forgings Policy. When acquiring the following forging items, whether as end items or components, acquire items that are of domestic manufacture to the maximum extent practicable: ITEMS Ship propulsion shafts Periscope tubes Ring forgings for bull gears CATEGORIES Excludes service and landing craft shafts All All greater than 120 inches in diameter Exceptions. The policy in does not apply to acquisitions (a) Using simplified acquisition procedures, unless the restricted item is the end item being purchased; (b) Overseas for overseas use; or (c) When the quantity acquired exceeds the amount needed to maintain the U.S. defense mobilization base (provided the excess quantity is an economical purchase quantity). The requirement for domestic manufacture does not apply to the quantity above that required to maintain the base, in which case, qualifying country sources may compete Waiver. Upon request from a contractor, the contracting officer may waive the requirement for domestic manufacture of the items listed in Contract clause. Use the clause at , Restriction on Acquisition of Forgings, in solicitations and contracts, unless or (a) The supplies being acquired do not contain any of the items listed in ; (b) An exception in applies. If an exception applies to only a portion of the acquisition, specify the excepted portion in the solicitation and contract EDITION

20 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement SUBPART ACQUISITIONS FOR FOREIGN MILITARY SALES (Revised December 24, 2009) Scope of subpart. (a) This subpart contains policies and procedures for acquisitions for foreign military sales (FMS) under the Arms Export Control Act (22 U.S.C. Chapter 39). Section 22 of the Arms Export Control Act (22 U.S.C. 2762) authorizes DoD to enter into contracts for resale to foreign countries or international organizations. (b) This subpart does not apply to (1) FMS made from inventories or stocks; (2) Acquisitions for replenishment of inventories or stocks; or (3) Acquisitions made under DoD cooperative logistic supply support arrangements General. (a) The U.S. Government sells defense articles and services to foreign governments or international organizations through FMS agreements. The agreement is documented in a Letter of Offer and Acceptance (LOA) (see DoD M, Security Assistance Management Manual). (b) Conduct FMS acquisitions under the same acquisition and contract management procedures used for other defense acquisitions. (c) Follow the additional procedures at PGI (c) for preparation of solicitations and contracts that include FMS requirements. (d) See for policy on contracts financed under U.S. assistance programs that involve payment of foreign country value added taxes or customs duties Guidance. For guidance on the role of the contracting officer in FMS programs that will require an acquisition, see PGI Pricing acquisitions for FMS. (a) Price FMS contracts using the same principles used in pricing other defense contracts. However, application of the pricing principles in FAR Parts 15 and 31 to an FMS contract may result in prices that differ from other defense contract prices for the same item due to the considerations in this section. (b) If the foreign government has conducted a competition resulting in adequate price competition (see FAR (b)(1)), the contracting officer shall not require the submission of cost or pricing data. The contracting officer should consult with the foreign government through security assistance personnel to determine if adequate price competition has occurred EDITION

21 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement Contractor sales to other foreign customers. If the contractor has made sales of the item required for the foreign military sale to foreign customers under comparable conditions, including quantity and delivery, price the FMS contract in accordance with FAR Part Cost of doing business with a foreign government or an international organization. (a) In pricing FMS contracts where non-u.s. Government prices as described in do not exist, except as provided in , recognize the reasonable and allocable costs of doing business with a foreign government or international organization, even though such costs might not be recognized in the same amounts in pricing other defense contracts. Examples of such costs include, but are not limited to, the following: (1) Selling expenses (not otherwise limited by FAR Part 31), such as (i) Maintaining international sales and service organizations; (ii) Sales commissions and fees in accordance with FAR Subpart 3.4; (iii) Sales promotions, demonstrations, and related travel for sales to foreign governments. Section of the International Traffic in Arms Regulations (22 CFR 126.8) may require Government approval for these costs to be allowable, in which case the appropriate Government approval shall be obtained; and (iv) Configuration studies and related technical services undertaken as a direct selling effort to a foreign country. (2) Product support and post-delivery service expenses, such as (i) Operations or maintenance training, training or tactics films, manuals, or other related data; and (ii) Technical field services provided in a foreign country related to accident investigations, weapon system problems, or operations/tactics enhancement, and related travel to foreign countries. (3) Offset costs (also see ). (i) A U.S. defense contractor may recover all costs incurred for offset agreements with a foreign government or international organization if the LOA is financed wholly with customer cash or repayable foreign military finance credits. (ii) The U.S. Government assumes no obligation to satisfy or administer the offset requirement or to bear any of the associated costs. (4) Costs that are the subject of advance agreement under the appropriate provisions of FAR Part 31; or where the advance understanding places a limit on the amounts of cost that will be recognized as allowable in defense contract pricing, and the 1998 EDITION

22 Part 225 Foreign Acquisition Defense Federal Acquisition Regulation Supplement agreement contemplated that it will apply only to DoD contracts for the U.S. Government's own requirements (as distinguished from contracts for FMS). (b) Costs not allowable under FAR Part 31 are not allowable in pricing FMS contracts, except as noted in paragraphs (c) and (e) of this subsection. (c) The limitations for major contractors on independent research and development and bid and proposal (IR&D/B&P) costs for projects that are of potential interest to DoD, in (c)(iii), do not apply to FMS contracts, except as provided in The allowability of IR&D/B&P costs on contracts for FMS not wholly paid for from funds made available on a nonrepayable basis is limited to the contract s allocable share of the contractor s total IR&D/B&P expenditures. In pricing contracts for such FMS (1) Use the best estimate of reasonable costs in forward pricing; and (2) Use actual expenditures, to the extent that they are reasonable, in determining final cost. (d) Under paragraph (e)(1)(a) of Section 21 of the Arms Export Control Act (22 U.S.C. 2761), the United States must charge for administrative services to recover the estimated cost of administration of sales made under the Arms Export Control Act. (e) The limitations in on allowability of costs associated with leasing Government equipment do not apply to FMS contracts Government-to-government agreements. If a government-to-government agreement between the United States and a foreign government for the sale, coproduction, or cooperative logistic support of a specifically defined weapon system, major end item, or support item, contains language in conflict with the provisions of this section, the language of the government-to-government agreement prevails Contingent fees. (a) Except as provided in paragraph (b) of this subsection, contingent fees are generally allowable under DoD contracts, provided-- (1) The fees are paid to a bona fide employee or a bona fide established commercial or selling agency maintained by the prospective contractor for the purpose of securing business (see FAR Part 31 and FAR Subpart 3.4); and (2) The contracting officer determines that the fees are fair and reasonable. (b)(1) Under DoD M, LOAs for requirements for the governments of Australia, Taiwan, Egypt, Greece, Israel, Japan, Jordan, Republic of Korea, Kuwait, Pakistan, Philippines, Saudi Arabia, Turkey, Thailand, or Venezuela (Air Force) shall provide that all U.S. Government contracts resulting from the LOAs prohibit the reimbursement of contingent fees as an allowable cost under the contract, unless the contractor identifies the payments and the foreign customer approves the payments in writing before contract award (see (a)) EDITION